Village of Grandview, of Jackson County, v. McElroy

• Decision Date: 10 October 1927
• Docket Number: No. 25929.,25929.
• Citation: 298 S.W. 760
• Court: Missouri Supreme Court
• Parties: VILLAGE OF GRANDVIEW, OF JACKSON COUNTY, v. McELROY et al.

298 S.W. 760

VILLAGE OF GRANDVIEW, OF JACKSON COUNTY, v. McELROY et al.

No. 25929.

Supreme Court of Missouri, Division No. 2.

October 10, 1927.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

In the matter of the certiorari proceeding by the Village (or Town) of Grandview a Jackson county, against Henry F. McElroy and others, Judges of the County Court of Jackson County, and others. Respondents' motion to quash writ of certiorari was granted, and petitioner appeals, after motion to set aside order quashing writ was denied. Case transferred to Kansas City Court of Appeals.

A. N. Gossett, of Kansas City, and T. Le, Robinson, of Grandview, for appellant.

Fred A. Boxley, of Kansas City, for respondents.

BLAIR, J.

Appeal from the circuit court of Jackson county. The action there was certiorari to respondents as judges of the county court of Jackson county, requiring them to send up the record in a certain proceeding, lately pending before said county court, entitled "In the Matter of the Application of M. S. Wallace and Others to Diminish the Limits of the Village of Grandview in Jackson County, Mo.," wherein respondents made an order diminishing the limits of said village of Grandview.

The circuit court issued its writ of certiorari in accordance with the prayer of the petition. On the return day of such writ respondent county judges filed their motion to quash the writ upon the ground that the circuit court was without jurisdiction to issue said writ, and because the facts stated in the petition for said writ showed upon their face that petitioner was not entitled to the relief prayed for. The trial court sustained said motion and quashed its writ of certiorari. After moving unsuccessfully to set aside the order quashing such writ, petitioner was granted an appeal to this court.

Our appellate jurisdiction has not been challenged, but it is our duty to determine for ourselves the fact of such appellate jurisdiction in every case, before undertaking to consider the merits of the questions presented for appellate review. Parker v. Zeisler, 139 Mo. 298. 40 S. W. 881; In re Bennett's Estate (Mo. Sup.) 243 S. W. 769; In re Letcher, 269 Mo. 140, loc. cit. 147, 190 S. W. loc. cit. 21; State ex rel. Rucker v. Hoffman, 313 Mo. 667, loc. cit. 669, 288 S. W. 16; State ex rel. Lamm v. Mid-State Serum Co. (Mo. Sup.) 264 S. W. 878.

The appellate jurisdiction of this court is limited to the classes of cases specified in article 6, § 12 of the Constitution. See, also, article 6, Amendment of 1884, § 5. Appellate jurisdiction in all cases appealed from the circuit courts, and not coming within the classes of cases specified in article 6, § 12, of the Constitution, is in the appropriate court of appeals. State ex rel. Rucker v. Hoffman, supra, loc. cit. 670 (288 S. W. 17).

Our jurisdiction cannot rest upon the amount involved. This is not that character of case. Even if it were, the record does not disclose such amount. Such fact must affirmatively appear. In re Bennett's Estate, supra, and cases cited. Title to real estate is not involved. The only way in which real estate is in any way affected is in respect to the right to tax it and to exercise municipal governmental control over it. Such considerations do not touch the question of title to real estate.

This is not a case where a county or other political subdivision is a party. A city or town within a county is not a political subdivision, so as to confer upon the Supreme Court appellate jurisdiction in a case, merely because such city or town is a party. Kansas City v. Neal, 122 Mo. 232, 26 S. W. 695; Parker v. Zeisler, supra; Webb City & Carterville Water Works Co. v. Webb City, 143 Mo. 493, 45 S. W. 279; Smith v. Sedalia, 228 Mo. 505, 128 S. W. 735; Louisiana v. Lang, 251 Mo. 664, 158 S. W. 1.

Nor does the fact that the certiorari proceeding was against the county judges in their official capacities make the county a party, within the meaning of article 6, § 12, of the Constitution, so as to confer appellate jurisdiction upon this court. State ex rel. Tadlock v. Mooneyham, 296 Mo. 421, 247 S. W. 163; State ex rel, Nee v. Gorsuch, 303 Mo. 295, 260 S. W. 455.

The only other ground upon which our appellate jurisdiction could possibly rest is found in what can scarcely be regarded as an effective attempt to inject a constitutional question into the case in the circuit court, in the following assignment, made for the first time in the motion for new trial, to wit:

"Because said judgment or order is contrary to, and in conflict with, section 309, art. 2, and section 7, art. 9, and section 10, art. 10, of Constitution of Missouri."

This assignment is insufficient for at least two reasons, even assuming that a motion for new trial or to set aside the order served any office in a case where, in effect, a demurrer to the petition is sustained. The reference to section "309," article 2, of the Constitution, is to an impossible section, and is clearly a mistake. Section 30, article 2, upon due process of law, is perhaps the section intended to be invoked.

The reference to this section and to section 7, art. 9, and section 10, art. 10, does not suggest how the judgment of the circuit court invaded appellant's rights under said sections. To raise a constitutional question, it is not sufficient that certain sections of the Constitution are set out and the contention made that the rights of appellant thereunder have been violated. The facts which create the conflict must be set out. State v. Goad, 296 Mo. 452, loc. cit. 456, 246 S. W. 917; State...